DENNIS LEE MUSGRAVES, PETITIONER V. UNITED STATES OF AMERICA No. 89-7030 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The per curiam opinion of the court of appeals (Pet. App. 1-7) is unpublished. JURISDICTION The judgment of the court of appeals was entered on January 23, 1990. The petition for a writ of certiorari was filed on March 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's guilty plea to a state drug charge, which was followed by a sentence of probation, constituted a "conviction" for the purpose of enhancing his sentence pursuant to 21 U.S.C. 960(b)(1) on a subsequent federal conviction, even though there had been no entry of a formal judgment of conviction by the state court. 2. Whether the evidence was sufficient to support petitioner's conviction, under 18 U.S.C. 924(c), for using or carrying a firearm during the commission of a drug trafficking offense. STATEMENT Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted on one count of possessing marijuana on a vessel with intent to distribute it, in violation of 46 U.S.C. 1903(a); one count of conspiring to commit that offense, in violation of 46 U.S.C. 1903(j); and two counts of using or carrying a firearm during the commission of a drug trafficking offense, in violation of 18 U.S.C. 924(c). He was sentenced to concurrent 20-year prison terms on the drug counts and to concurrent five-year prison terms on the gun counts, the two sets of terms to run consecutively. He also received a ten-year term of supervised release. The court of appeals remanded the case to the district court with instructions to resentence petitioner for one firearm violation only, /1/ and affirmed in all other respects. Pet. App. 1-7. 1. The evidence at trial showed that a Colombian drug dealer hired James Smith to transport marijuana from Colombia to the Bahamas by ship. Smith had transported marijuana in the past and petitioner had helped him. Smith hired petitioner for the expedition to the Bahamas, agreeing to pay him $50,000. Smith hired another assistant as well. The three men embarked on the CAPILYA and met with several boats bearing marijuana off the coast of Colombia, where about 16,500 pounds of marijuana were loaded onto the CAPILYA. Coast Guard officers subsequently intercepted the CAPILYA near Cuba, boarded the vessel, discovered the marijuana, and arrested the three men on board. Pet. App. 2-4. Smith's employer had given him two firearms, which Smith stored in the cabin during the voyage. The weapons were accessible to each of the three men on board the CAPILYA, all of whom ate and slept in the cabin. Smith used one of the weapons to fire at beer cans during the voyage. Pet. App. 3; 3 R.A. 143-144. 2. Petitioner had received one year's probation in a Florida state court for possession of amphetamines in 1972. The Florida court, acting under Fla. Stat. Ann. Section 948.01(3) (West Supp. 1988), did not enter a formal judgment of conviction. /2/ In sentencing petitioner on the drug counts, the district court treated the 1972 disposition as a prior conviction for the purpose of enhancing petitioner's sentence pursuant to 21 U.S.C. 960(b)(1). /3/ 3. On appeal, petitioner contended that the evidence was insufficient to support his firearm conviction, denying that he had any knowledge of the guns until "near the end" of the voyage. Pet. App. 6. The court rejected petitioner's claim, noting evidence showing that Smith had carried the weapons for protection, that they were visible in the cabin of the vessel and accessible to each crewmember, and that Smith had discharged at least one of the weapons at sea. Ibid. In light of this evidence, the court concluded that petitioner would be "hard-pressed" to deny knowledge of the presence of the guns. Ibid. Petitioner also contended that the district court improperly had enhanced his sentence on the drug counts in reliance on the 1972 state court disposition of the possession of amphetamines charge. Petitioner argued that because the charge resulted in the "withholding of adjudication," there was no "conviction" for the purpose of sentence enhancement under Section 960(b)(1). The court rejected that argument in light of United States v. Grinkiewicz, 873 F.2d 253 (11th Cir. 1989), and United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987), cert. denied, 109 S.Ct. 55 (1988). ARGUMENT 1. Petitioner renews his contention (Pet. 2) that his sentence was enhanced improperly in light of the disposition of the 1972 state drug charge. There is no merit to that claim. In Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), this Court addressed the question of whether the firearms disabilities imposed on previously convicted felons by 18 U.S.C. 922(g) and (h) (1982 ed.) applied with respect to a person who previously had pleaded guilty to a state felony charge, when no formal judgment of conviction had been entered and the record of the proceedings had been expunged following a term of probation. The Court held, first, that the question of what constituted a "conviction" within the meaning of the federal firearm statute was "necessarily" one of "federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the state." 460 U.S. at 111-112. The Court went on to conclude that a plea of guilty followed by a sentence of probation constitutes a "conviction" within the meaning of the federal firearm statute, even in the absence of a formal judgment of conviction. Id. at 114. The Court reasoned that "one cannot be placed on probation if the court does not deem him to be guilty of a crime -- in this case a crime that Congress considered demonstrative of unreliability with firearms." Id. at 113-114 (footnote omitted). /4/ Under Dickerson, whether the 1972 state disposition of the charges against petitioner constituted a "conviction" under Section 960(b)(1) is a federal question, since that statute has not been amended to provide otherwise. Furthermore, there is no reason why the 1972 disposition is any less a "conviction" for purposes of sentence enhancement than it would have been under Dickerson for purposes of the federal firearm disability statute. In enacting the enhancement provision, Congress intended to increase the penalty for drug importation offenses committed by individuals who previously had been determined in a court of law to have committed a felony drug offense. The imposition of a probationary term on a felony drug charge reflects such a determination. /5/ Even assuming that Florida law controls whether petitioner's guilty plea followed by a sentence of probation was a "conviction" within the meaning of Section 960(b)(1), petitioner's claim fails. The Eleventh Circuit has held that such a disposition is a conviction under Florida law (United States v. Grinkiewicz, 873 F.2d at 255; United States v. Orellanes, 809 F.2d at 1528), and there is ample support for that conclusion in decisions of the Florida courts. See Lopez v. State, 509 So. 2d 1334, 1335 n.5 (Fla. 1987); Barber v. State, 413 So. 2d 482 (Fla. 1982); Maxwell v. State, 336 So. 2d 658, 659-660 (Fla. 1976); State v. Gazda, 257 So. 2d 242, 243-244 (Fla. 1971). Of course, this Court generally does "not review, save in exceptional cases, the considered determination of questions of state law by the intermediate federal appellate courts." Huddleston v. Dwyer, 322 U.S. 232, 237 (1944). 2. Petitioner also contends (Pet. 2) that the evidence was insufficient to support his conviction, under 18 U.S.C. 924(c), for using or carrying a firearm during a drug-trafficking offense. The courts below correctly rejected this claim. Section 924(c)(1) reaches the possession of a firearm which "in any manner facilitates the execution of a felony." United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir. 1985). The firearm does not have to be exhibited during the commission of the crime; it need only be present and available, and have some utility in advancing the criminal venture. For example, in United States v. Grant, 545 F.2d 1309 (2d Cir. 1976), cert. denied, 429 U.S. 1103 (1977), a search of the defendant's premises uncovered both cocaine and weapons. The court of appeals affirmed the conviction under Section 924(c)(1), stating: "We hold that the evidence established that (the defendant) used the guns as part of a tight security operation to protect large quantities of cocaine and hence to commit the felony of possessing cocaine with intent to distribute." Id. at 312. See also United States v. Machado, 804 F.2d 1537, 1546-1548 (11th Cir. 1986); United States v. Chase, 692 F.2d 69 (8th Cir. 1982); United States v. Barber, 594 F.2d 1242, 1244-1245 (9th Cir.), cert. denied, 444 U.S. 835 (1979). In this case, the evidence showed that Smith had received two firearms from the men who recruited him to smuggle the marijuana (3 R.A. 86-87); that Smith had kept the firearms aboard the vessel for protection (ibid.); that the guns were visible in the cabin and accessible to the crewmembers (id. at 56-60, 89-90); and that, while at sea, Smith had used one of the guns (id. at 143-144). On this record, the jury could reasonably conclude that petitioner knew about the guns and that their purpose was to facilitate the drug smuggling operation. Accordingly, the fact-specific determination of the courts below that the evidence supported petitioner's firearm conviction is correct and does not warrant further review by this Court. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOEL M. GERSHOWITZ Attorney MAY 1990 /1/ The court held that because the two guns had been received and possessed simultaneously, petitioner had committed only one violation of Section 924(c). /2/ Section 948.01(3) provides in pertinent part: If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant guilty or stay and withhold the adjudication of guilt; and in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation. /3/ Section 960(b)(1) requires the imposition of a ten-year minimum sentence for defendants convicted of crimes involving large quantities of illegal drugs, such as the 16,500 pounds of marijuana that petitioner transported. It further provides that "(i)f any person commits such a violation after one or more prior convictions * * * for a felony under * * * (a) law of a State, the United States or a foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not less than 20 years." /4/ In 1986, three years after Dickerson was decided, Congress amended the statute disabling felons from possessing firearms by enacting 18 U.S.C. 921(a)(20), which provides that the meaning of "conviction" must be determined by reference to state law for purposes of the disability provision. /5/ Petitioner's reliance on Gonzalez v. United States, 224 F.2d 431 (1st Cir. 1955), is unavailing. In that case the defendant had committed additional drug offenses while free on bail after pleading guilty to drug charges, but before he had been adjudged guilty or sentenced for the earlier offenses. The court held that he could not be sentenced as a second offender for the offenses that he had committed while he was free on bail because he had not been convicted and sentenced for the earlier offenses at the time that he committed the additional offenses. Id. at 435. In this case, in contrast, petitioner had received a probationary term on the Florida charge long before the offenses at issue, and, as the Court observed in Dickerson (460 U.S. at 113-114), the imposition of a probationary term reflects a determination of guilt.